The Life and Death Consequences of a New Scalia-Like US Supreme Court Justice on Death Row Prisoners in Texas and Across the USA

By: Charles Flores #999299, Texas Death Row

February 2017

When Donald J. Trump was elected president of the USA, out best hope of a progressive US Supreme Court bring created by the appointment of a liberal and progressive Justice went up in flames. To a Texas Death Row prisoner, this is the most important issue that resulted from the presidential election because it has life and death consequences for every prisoner who is sentenced to death in the USA.

In the months leading up to the presidential election, I was convinced that if Hillary Clinton was elected president, she would have promptly appointed a liberal and progressive US Supreme Court justice, who would have been the critical piece in the Supreme Court revisiting the issue of capital punishment and abolishing it for good. But, when Mrs. Clinton was not elected the best opportunity to have the Death Penalty abolished by the Supreme Court in 30 years was lost for good. Now, we must deal with the fact that a conservative, right-wing US Supreme Court Justice will be installed by Trump. And, soon.

On January 31, 2017, we learned that Trump had indeed made his choice by nominating Neil Gorsuch to fill the void in the US Supreme Court. Gorsuch as been described as a “Scalia acolyte,” a judge who writes with a “Scalia-like flair,” so I believe it is safe to say Trump has found a “Scalia clone” to fill the seat that was vacated by his death in 2016. The bottom line is, I do not think the Democrats can do anything to stop Gorsuch from being put into the Supreme Court. Because the Republicans have a majority in the US Senate, they have the ability to employ the “nuclear option,” in which Republicans change Senate rules, eliminating the 60-vote threshold needed to bring Gorsuch’s nomination to the Senate floor. This is the critical step in having Gorsuch confirmed as the next US Supreme Court Justice. Senate Majority leader, Mitch McConnell, has already declared that “Gorsuch will be confirmed!” And, Trump has also endorsed the use of the nuclear option to finish the deal, if necessary.

This means any hope of the US Supreme Court revisiting the issue of Capital Punishment and abolishing it has disappeared. It also means that it’s back to business as usual in the vast majority of Death Row prisoners’ appeals being refused to be heard by the US Supreme Court, meaning the appeal is denied. Keep in mind the US Supreme Court is, in most cases, the last hope for a Death Row Prisoner’s appeal before he is murdered in the “name of justice.” Before Scalia’s death he was the Justice assigned to hear all of Texas Death Row Prisoner’s appeals before execution. Is there any wonder why so many prisoners are executed in Texas?

I think it’s safe to say Gorsuch will assume these duties as well and all final appeals filed on behalf of prisoners on Texas Death Row will be heard by him, a “Scalia clone.” Thus, I say, having a conservative right-wing justice like Gorsuch installed in the Supreme Court has life and death consequences to all Death Row prisoners across the USA, and especially in Texas. If Hillary Clinton had been able to appoint a liberal justice to the Supreme Court, we could now be thinking of the Abolition of Capital Punishment across the land; however, now that possibility is gone for good.

I know what it is like to have a final last minute appeal filed in the US Supreme Court, while living under an execution date. About a year ago, I had a Writ of Certiorari filed in the US Supreme Court, and was living on Death Watch, with an execution date of June 2, 2016. I know what it felt like to have this appeal put before the highest Court in the Country and have no chance of it being heard because of Scalia and the other conservative right-wing Justices in the Supreme Court. And, I was correct in this belief because the Supreme Court refused, with no comment, to hear my case.

It was through a miracle that I was able to obtain a new appeal attorney to help in the last 90 days of my life. An appeal was filed, which challenged my conviction under junk science (the only witness being hypnotized manufactured the false identification) and, thus, I was granted a stay of execution through an evidentiary hearing on this issue.

But, what about Death Row prisoners with no such hope? What about cases where the guilt is not in question? What should they do? Where should they place their hope of any last minute stay or reprieve? With the new US Supreme Court Justice Gorsuch? I don’t think so.

The fact of the matter is that most Death Penalty cases which have gone before the Supreme Court for the past 30 years have had virtually no hope of any relief being granted, and, with Neil Gorsuch being installed as the new Supreme Court Justice, it may be more than another 30 years before there is any glimmer of hope, relief, or Abolishing the Death Penalty in this Country.

There are hard realities which we must come to terms with and understand. If you are a Death Row prisoner, it’s a sad that that, should your case make it before the Highest Court in the land, you are likely to end up dead!